Patricia Miller: Contraception: 1; Notre Dame: 0

(Religion Dispatches) Why are some U.S. courts bending over backwards worrying about whether a generous exemption from the contraception mandate, which should never have been granted in the first place, is enough of an exemption from a rule that’s been essentially voided by Catholics themselves?

I’ll get back to this question below, but first: the latest news from the fight against contraception. A federal appeals court has ruled that Notre Dame, one of the most recognizably “Catholic” of Catholic universities, must provide free contraception under its health plan. Apparently requiring the Fighting Irish to provide birth control doesn’t have the same resonance as asking cute elderly nuns in habits to do so.

That’s good news for employees and students who get their insurance through the university, less good news for the Catholic bishops, as the Notre Dame suit was one of the most high-profile against the contraception mandate in ObamaCare.

Most importantly, in his opinion Judge Richard Posner delved into the question at the heart of lawsuits against the mandate by Catholic nonprofits: Is requiring them to sign a form opting out of the contraceptive mandate a “trigger” that would make them complicit in the provision of birth control and thereby violate their religious freedom? “[W]e have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to ‘trigger’ the provision of female contraceptives,” he wrote.

But, as noted above, other courts have found just the opposite. A federal district court judge in New York granted the Archdiocese of New York an injunction from the mandate because he said that signing the form violated the dioceses’ religious freedom. And the Little Sisters of the Poor, who made the same argument, were granted a temporary stay by Supreme Court Justice Sonia Sotomayor from providing contraception while their case is decided. [More]

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